When Chief Justice David Maraga delivered his last State of the Judiciary address late last month, he struck a conciliatory tone.
The CJ pleaded for forgiveness from those he might have annoyed or whose expectations he did not live up to.
Among those he reached out to was President Kenyatta, maintaining that he had nothing personal against him or his administration despite having several run-ins.
“It is clear that there is a difference of opinion between me and you. But I want to assure you and the entire nation that I have nothing personal against you. To the contrary, I have given you your respect as our Head of State. I am totally apolitical and hold no brief for any politician or political interest,” he said.
For the man who nullified the presidential election in 2017, Justice Maraga said he was retiring a happy man, even though he said he did not achieve what he planned to do.
Justice Maraga, considered a conservative judge, started well when he was sworn into office in October 2016 as the country’s second chief justice under the 2010 Constitution.
Before he joined the Judiciary, he had served for 25 years in Nakuru as a lawyer practising conveyancing, civil and criminal litigation. He was appointed a judge of the High Court in 2003 and rose to the Court of Appeal before becoming the CJ.
His trouble with the Jubilee administration started immediately the Supreme Court, in a majority decision, nullified President Kenyatta’s election win in September 2017.
Immediately after the pronouncement, a buoyant President Kenyatta made a tour of Nairobi promising to “revisit” the matter. That statement came to haunt the Judiciary — budget cuts, disobedience of court orders and, in some instances, being ignored at state functions, which forced Mr Maraga to complain bitterly. It did not happen once nor twice but on many instances, until Kenyans associated him with whining.
Justice Maraga, however, was not cowed. He became bolder and poured out his frustrations in public. He was particularly mad at what he termed as undermining the rule of law and disobedience of court orders by President Kenyatta and the Executive.
Last year, in a televised address to the nation from the Supreme Court, Justice Maraga revealed an alleged secret plot by the Executive to remove him from office before December 31, 2019.
Then, Justice Maraga laid bare the frustrations his office and the entire Judiciary has been suffering at the hands of the Executive over budget cuts. The problem was soon solved after part of the budget was restored.
The President refused to swear in 40 judges as recommended by the Judicial Service Commission (JSC). They were 41, but one of the candidates died recently in a road accident.
The Supreme Court is currently without one judge after Justice J.B. Ojwang’ retired in February. The Constitution stipulates that the Supreme Court is properly constituted, for purposes of its proceedings, if it is composed of five judges.
At the Court of Appeal, the court has only 15 judges and the court was forced in January, to recall judges who had been decentralised to Kisumu, Nyeri and Malindi.
Of the 40 new judges, 11 were destined for the Court of Appeal while the rest were headed to the Environment and Land Court as well as the Employment and Labour Relations Court.
The Executive cited integrity issues as part of the reasons for refusing to swear in the judges. But the CJ dismissed the claim, saying, the President is represented by at least four people, including Attorney-General Paul Kihara, at the JSC, who took part in the process.
The JSC supported Mr Maraga, saying, the President’s role in the appointment and promotion of judges is purely facilitative. “The constitutional structure and design was intended to insulate the process from interference by an organ of the state and the President’s role is purely facilitative,” JSC secretary Anne Amadi said.
Among the achievements of Justice Maraga is the increase in the number of High Court stations to 43 across the country. The counties without High Courts are only five — Samburu, West Pokot, Wajir, Mandera and Elgeyo-Marakwet. The number of magistrates’ courts has also increased from 120 to 141 across the country.
Clearing the case backlog, one of the promises the CJ made to Kenyans has, however, remained elusive. Mr Maraga, for his part, pointed out that Kenyans are very litigious, filing even cases that could be easily settled at family level.
Justice Maraga was to drop another bombshell in September when he advised the President to dissolve Parliament for failing to pass the two-thirds gender rule, in accordance with Article 27(3) read together with Articles 81(b) and 100 of the Constitution.
He drew criticism from among others, National Assembly Speaker Justin Muturi, who said MPs were wrongly castigated for failure to enact the relevant legislation.
As he proceeded on leave pending his retirement on January 12, Justice Maraga appointed his deputy, Philomena Mwilu, as the acting CJ, a move that also attracted criticism.
Activist Okiya Omtatah had rushed to court before the CJ proceeded on leave to stop the move, but Mr Maraga made the appointment before the court issued any orders.
Mr Omtatah opposed Ms Mwilu’s appointment, in acting capacity, until she is cleared of allegations of corruption and abuse of office.
Mr Omtatah mentioned four petitions pending before the JSC touching on the conduct of the DCJ . He said the accusations are grave as they touch on corruption and abuse of office.
Justice Maraga also voiced his concerns over the creation of the Judiciary Ombudsman, urging the Building Bridges Initiative (BBI) to abandon it and instead allow the JSC to the appointing.
